8/26/2014

He’s not in custody, but the writ of habeas corpus can apply to constructive custody as well as actual custody — so maybe this is the right vehicle. I don’t know. (P.S. When lawyers use the word “constructive” it means it’s not real.) The arguments in the petition repeat a lot of arguments that were made by Eugene Volokh here and here. Check it out:

since the indictment has caused, as i understand it, the suspension of his CCW permit, he has already been denied some of his civil rights, so seeking an immediate legal remedy seems a perfectly sensible approach.

Perry’s lawyers should, and I expect will, use every available procedure to force a resolution of this ridiculous indictment as soon as possible. They’re pushing for an early trial date, and they’ll doubtless seek some of the same sorts of relief with the judge presiding over the criminal case as they’ve sought in this habeas motion. Whether this was a necessary step, or whether it’s merely available as an alternative and they’re pursuing all such alternatives, I don’t know enough about Texas criminal law and procedure to say without doing research I haven’t done.

By the way, the second lawyer for Perry listed on the cover page — Thomas R. Phillips of Baker Botts — was an associate just leaving that law firm when I started there in October 1981. I took over some of his docket because he’d just been appointed by Texas Gov. Bill Clements to an open seat on the Harris County Civil District Courts.

While he was a state district judge, I had the opportunity to practice before Judge Phillips several times. Indeed, it was in his court that I had the privilege of representing a rock group against anonymous t-shirt and poster counterfeiters; I remember his look of surprise when he first “called the case” to bring the lawyers up to the bench in the first hearing: “The Who vs. John Doe.”

In 1988, Judge Phillips sought and won election to become Chief Justice of the Texas Supreme Court — a seat to which he was reelected repeatedly and by very wide margins. He served as Chief Justice with distinction and to near-universal acclaim, both state and national, until 2005. He’s one of the smartest lawyers and most decent men I have ever had the privilege of knowing. So I can confirm that Gov. Perry will be very, very well-represented.

As is the case in sooooo much of law, all that is necessary is to give a biased judge the figleaf of precedent or theory with which s/he can run. I imagine that most Texas judges were aghast when they learned of this indictment and would happily quash it if given the chance.

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